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Judge Blasts UNM, Fines Regents $100K

ALBUQUERQUE, N.M. — A state district judge has imposed $100,000 in sanctions against the University of New Mexico regents and leveled scathing criticism at UNM Health Sciences Center Chancellor Dr. Paul Roth and a university attorney in connection with a civil lawsuit.

The court found that Health Sciences Center counsel Scot Sauder, with “Dr. Roth’s unfortunate imprimatur,” had “willfully and improperly” interfered with a witness, adversely affecting the court docket, the litigants and the administration of justice.

The 10-page opinion by 2nd Judicial District Judge Alan Malott comes in a medical malpractice lawsuit against Lovelace Health System and a UNM medical resident over a cesarean section that went terribly wrong.

Attorneys for the plaintiffs had engaged UNM pathologist Dr. Ian Paul as an expert witness. But Paul withdrew from the case, telling the court in a hearing that he felt intimidated and feared retaliation.

“That any public entity, let alone the flagship university of this state, believes it has such power to stifle comment is both terrifying and in violation of public policy,” Malott wrote in an opinion filed Thursday.

The court’s ruling is at odds with the finding of the New Mexico Disciplinary Board, Health Sciences Center spokesman Billy Sparks said.

In a Dec. 16 letter to plaintiffs attorneys Carl Bettinger and Greg Chase provided by Sparks, the chief disciplinary counsel wrote that he had investigated the complaint and found “insufficient evidence to support allegations that Mr. Sauder violated the Rules of Professional Conduct” or that he intended to intimidate Paul.

Sparks said the university had just received the court’s decision Thursday afternoon.

“We will be reviewing other aspects of the decision in the coming days,” he said, noting that campus offices are closed until Jan 3.

Bettinger said late Thursday, “We are fortunate to have solid, square pegs of judicial integrity such as Judge Malott, who with this decision let sunlight into dark places …

“This also shows that with the right help, a just individual can take on an unjust Goliath of an institution and prevail.”

As for the disciplinary board’s letter, he said it and the court operate on “complementary and parallel tracks. I’m disappointed in that decision, but I respect it. As Judge Malott pointed out, the rules under which they operate are entirely different from those of the court.”

Sauder told Malott in court that he believed Paul, a pathologist with the Office of the Medical Investigator, had violated university policy by placing himself in a position opposed to UNM with his anticipated testimony.

But the court opinion notes that when asked to identify the specific policy, the regents stated there was none dealing with testimony by medical staff or OMI physicians. To apply policy as Sauder and the regents urged, Malott said, “would be to make any and all comment on, or criticism of, the university an impermissible conflict of interest that could subject the commentator to discipline or termination.”

Sauder’s efforts to remove Paul as an expert involved multiple calls and emails to Paul’s supervisors in both the OMI chain of command and the medical school.

Paul ended up withdrawing as an expert witness, explaining in an email, “I have been getting a lot of pressure from the higher ups … to withdraw … The fallout for me is not worth it at this point.”

Malott characterized Sauder’s efforts as “interference with a witness (that) is just the kind of conduct that fosters distrust and disdain for our profession and the court system.”

Bettinger and Chase, who represent the woman and her husband suing over the operation, had asked Malott to find that the regents, through Sauder, engaged in witness intimidation in violation of both the criminal code and the Rules of Professional Conduct.

However, Malott said neither was within his purview. He said the Supreme Court has the duty to discipline lawyers, and it is up to the district attorney or the attorney general to prosecute criminal violations.

Malott conceded that an argument could be made that Sauder’s conduct didn’t violate any Rules of Professional Conduct, but called that “merely porcine cosmetology” – putting lipstick on a pig.

The judge said, however, that a court has inherent power to impose sanctions on both litigants and attorneys to regulate its dockets and to promote judicial efficiency.

“In contrast to the regents’ position that this is ‘much ado about nothing,’ and Mr. Sauder’s argument that ‘I was just doing my job,’ the court finds there is indeed much more here than Lewis Carroll’s elusive snark; there is an ‘elephant in the room,’ ” the opinion said.

Because of the “significant value to the court and the public in counsel bringing these issues to the court’s attention,” Malott awarded Bettinger & Chase law firm $20,000 plus $12,000 in costs for what he estimated was 50 hours of preparation for an evidentiary hearing that consumed two days in court.

He ordered Sauder to pay $1,500 to Roadrunner Food Bank personally and said no state or government funds could be used to pay the sanction.

The big money was leveled against the Board of Regents, which was substituted as a defendant for the individual physician in the lawsuit.

Malott imposed sanctions totaling $100,000 – $30,000 each to be paid to the Roadrunner Food Bank and United Way of New Mexico, $15,000 to Animal Humane and $25,000 to Healthcare for the Homeless.
— This article appeared on page A1 of the Albuquerque Journal


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